Kemp Investments (NSW) Pty Ltd v Valuer-General
[2012] NSWLEC 253
•09 November 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Kemp Investments (NSW) Pty Ltd v Valuer-General [2012] NSWLEC 253 Hearing dates: 9 November 2012 Decision date: 09 November 2012 Jurisdiction: Class 3 Before: Craig J Decision: Orders are set out at [11] of the judgment
Catchwords: PROCEDURE - application for separate question to be heard in Class 3 proceedings - whether separate and preliminary question should be ordered - parties agree that determination of the separate question likely to resolve the proceedings - separate question ordered Legislation Cited: Uniform Civil Procedure Rules 2005
Valuation of Land Act 1916Cases Cited: Reysson v Roads and Traffic Authority [2011] NSWLEC 153 Category: Interlocutory applications Parties: Kemp Investments (NSW) Pty Ltd (First applicant)
Timothy John Flaherty (Second applicant)
Valuer-General (Respondent)Representation: T J Flaherty (Applicants)
M R M Carpenter (Respondent)
Michael Flaherty Solicitor (Applicants)
I V Knight, Crown Solicitor (Respondent)
File Number(s): 30772 and 30773 of 2012
EX TEMPORE Judgment
The applicants, Kemp Investments (NSW) Pty Limited and Timothy Flaherty, seek an order for the separate determination of two questions pursuant to Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 (UCPR).
By application dated 27 July 2012, the applicants commenced two interrelated proceedings in Class 3 of the Court's jurisdiction. They arise from objections against the Valuer-General's determination of land value made for 1 July 2011 and are brought pursuant to s37 of the Valuation of Land Act 1916. The land concerned consists of two adjoining lots known as 98 and 100 Yarrara Road, Pennant Hills. Apparently a single building straddles those lots.
In accordance with s 6A(1)of the Valuation of Land Act, the Valuer-General determined that the land value of each lot was $519,000. It is the applicants' contention, as I understand it, that when determining the land value of each lot, the Valuer-General should not have disregarded the building or structures that straddles those lots for the purpose of s 6A(1). If their contention in this regard is correct, a land value of $300,000 per lot would result.
The separate questions that the applicants frame and seek to have determined are:
"1. Are the man-made structures erected on 98 Yarrara Road, excluding the land improvements, determined to be improvements in respect of s6A of the Valuation of Land Act 1916.
2. Are the man-made structures erected on 100 Yarrara Road, excluding the land improvements, determined to be improvements in respect of s 6A of the Valuation of Land Act 1916."
The Valuer-General supports the determination of a separate question.
Applicable principles
The principles applicable to a determination under Pt 28 r 28.2 of the UCPR were summarised by me in Reysson v Roads and Traffic Authority [2011] NSWLEC 153. Relevantly, I said at [10]:
"The principles applicable to determining whether a separate question should be ordered pursuant to UCPR 28.2 have recently been considered by me in Wollongong City Council v Vic VellarNominees Pty Ltd [2011] NSWLEC 138. I do not repeat the summary of principles there set out but refer in particular to those that I have extracted from the judgment of Jagot J in Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 at [6]. One of the principles articulated by her Honour and relevant to the present motion is that the separate question posed for consideration should be one that has the capacity to narrow substantially the field of controversy. As the position was expressed by Young CJ in Eq in Strathfield Municipal Council v Poynting(2001) 116 LGERA 319 at [113], a separate question should only be posed "when there is a critical matter which if dealt with in a preliminary hearing will far more likely than not be convenient and save significant expense."
The position as between the parties
In essence, the applicants and the Valuer-General in the present case support the determination of the separate questions on the basis that the determination of that question is likely to resolve the proceedings without the necessity to obtain, call and debate the evidence of valuers. In this regard, Mr Flaherty, who appears for the applicants, has indicated that if the questions are determined adversely to his contention, he will accept the land value determined by the Valuer-General.
The parties are agreed that there is no factual controversy between them for the purpose of determining the separate question. The issue to be agitated is whether, when determining land value in accordance with s 6A(1) of the Valuation of Land Act, those structures which straddle the two adjoining lots constitute improvements that must be disregarded. The parties are to agree on a statement of facts identifying the improvements sufficient for the purpose of determining the separate question. On this basis I am prepared to make an order in accordance with the rule providing an order for separate questions.
As to the questions framed by the applicants, I do not accept them in their present form. The following form is, it seems to me, more appropriate to identify the questions for separate determination. The questions that I frame are these:
(i) Apart from any "land improvements" within the meaning of s 4 of the Valuation of Land Act 1916, were all or any of the structures erected on land known as 98 Yarrara Road,Pennant Hills as they stood at 1 July 2011, "improvements" within the meaning of s 6A(1) of the Valuation of Land Act?
(ii) Apart from any "land improvements" within the meaning of s 4 of the Valuation of Land Act 1916, were all or any of the structures erected on land known as 100 Yarrara Road, Pennant Hills as they stood at 1 July 2011,"improvements" within the meaning of s 6A(1) of the Valuation of Land Act?
I formally order that those two questions be referred for separate determination.
Orders
The Orders I make are as follows:
1. Pursuant to Pt 28, r 28.2 of the Uniform Civil Procedure Rules 2005 I order that the following questions be determined separately from any other or further issue in the proceedings:
(i) Apart from any "land improvements" within the meaning of s 4 of the Valuation of Land Act 1916, were all or any of the structures erected on land known as 98 Yarrara Road, Pennant Hills as they stood at 1 July 2011, "improvements" within the meaning of s 6A(1) of the Valuation of Land Act?
(ii) Apart from any "land improvements" within the meaning of s 4 of the Valuation of Land Act 1916, were all or any of the structures erected on land known as 100 Yarrara Road, Pennant Hills as they stood at 1 July 2011,"improvements" within the meaning of s 6A(1) of the Valuation of Land Act?
2. Give leave to the parties to approach the Registrar forthwith to obtain a date for hearing of the separate questions identified in Order 1.
3. The Applicants are to file and serve any evidence on which they intend to rely by 23 November 2012.
4. The Respondent is to file and serve any evidence on which he proposes to rely by 7 December 2012.
5. The Applicants and the Respondent are to arrange a mutually convenient date for the purpose of inspecting the sites that are the subject of the separate questions for the purpose of preparing an agreed statement of facts.
6. The parties are to settle an agreed Statement of Facts by 14 December 2012.
7. The Applicants must file and serve a written outline of their submissions directed to the separate questions by 21 December 2012.
8. The Respondent must file and serve a written outline of his submissions directed to the separate question by 18 January 2013.
9. The Applicants must file and serve a written outline of any submissions in reply by 8 February 2013.
10. Reserve liberty to apply to either party on 3 working days' notice.
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Decision last updated: 21 November 2012
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